Equality and Human Rights Commission

Age is different from other protected characteristics. If an employer can show that it is objectively justified, they can make a decision based on someone’s age, even if this would otherwise be direct discrimination.

However, it is very unusual to be able to objectively justify direct age discrimination of this kind. Employers should be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.

For example:

An employer rejects an applicant for a management job just because they are 25-years-old and much younger than the people they would be managing.

An employer only makes people over 50 do an aptitude test, because the employer believes that people over 50 do not have the mental agility to learn to do a job.

These are both examples of age discrimination which an employer would find it very difficult to objectively justify

If an employer can show that a particular protected characteristic is central to a particular job, they can insist that only someone who has that particular protected characteristic is suitable for the job. This would be an ‘occupational requirement’.

For example:

A women’s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. This would probably be a genuine occupational requirement.

An employer can take into account a protected characteristic where not doing this would mean they broke another law.

For example:

A driving school must reject a 19-year-old who applies for a job as a driving instructor because to offer them a job – even if they are otherwise the best candidate – would involve breaking the law because a driving instructor must be aged at least 21.

An employer can take a person’s protected characteristic into account if there is a need to safeguard national security, and the discrimination is proportionate.

Exceptions that only apply to some employers

There are also exceptions that only apply to some employers:

• If an employer is a religion or belief organisation, they may be able to say that a job requires you to hold a particular religion or belief if, having regard to the nature or context of the job, this is an occupational requirement and it is objectively justified.

For example:

A Humanist organisation which promotes Humanist philosophy and principles would probably be able to apply an occupational requirement for its chief executive to be a Humanist.

• If the job is for the purposes of an organised religion, the employer may be able to say that a job or role requires you to have or not have a particular protected characteristic or to behave or not behave in a particular way.
  
  If:
  • a job or role exists for the purposes of an organised religion, such as being a Minister or otherwise promoting or representing the religion, and
  • because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion’s followers or to conform to the doctrines of the religion by applying a requirement to the job or role,

an employer may be able to refuse to employ you because:

• you are male or female
• you are a transsexual person
• you are married or in a civil partnership, including taking into account who you are married to or in a civil partnership with (such as being married to a divorced person whose former spouse is still alive)
• you manifest a particular sexual orientation, for example, you are a gay or lesbian or bisexual person who is in a relationship with a same-sex partner.

This exception should only be used for a limited number of posts, eg ministers of religion, and a small number of posts outside the clergy, eg those which exist to promote or represent the religion. The requirement must be a proportionate way of meeting the aims stated above.

• If an organisation is an employment service provider, they may be able to say that you must have a particular protected characteristic to do vocational training, if the training leads to work for which having that characteristic is an occupational requirement.
• If an organisation is an educational establishment like a school or college, they may be able to say that you have to be of a particular religion or belief, or must be a woman.
• If an employer is recruiting to the civil, diplomatic, armed or security and intelligence services and some other public bodies, they can specify what nationality a person has to be.
• If an employer is recruiting to service in the armed forces, they may be able to exclude women and transsexual people if this is a proportionate way to ensure the combat effectiveness of the armed forces. In addition, age and disability are, in effect, not protected characteristics for service in the armed forces. Disability can also be a reason to refuse someone work experience in the armed forces.

There are more details of these exceptions in the Glossary.